Media By: Shaheen Rahman


Article 2 and the provision of healthcare — Part 3

24 November 2020 by

Inside the main hall of the Royal Courts of Justice. The Court of Appeal undertook a detailed consideration of article 2 this year.

This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa and part 2 considered how it has been interpreted and applied. In this final part, the latest decision of the Court of Appeal this year will be analysed and the overall trend in the law explained.

R (Maguire) v HM Senior Coroner for Blackpool [2020] EWCA Civ 738

The two lines of Strasbourg authority considered in the two Fernandes cases are extensively cited by the Court of Appeal in the decision in Maguire.  This case concerned the death of a patient with Down’s syndrome, learning difficulties and limited mobility who had lived in a residential care home and was subject to deprivation of liberty safeguards.  In the days prior to her death she had been ill but had not cooperated with attempts to take her to hospital and the decision was taken to care for her at the home overnight.  She deteriorated and was admitted to hospital where she later died.  The cause was a perforated gastric ulcer, peritonitis and pneumonia. 

The claimant argued that the circumstances of the death engaged the procedural obligation to hold an enhanced inquest under article 2.  Whilst agreeing initially, and holding a jury inquest, the Coroner subsequently revisited his decision in light of the Divisional Court’s judgment in Parkinson.  Having heard the evidence, he did not consider there was any arguable breach of the substantive operational duty under article 2 and hence the procedural duty was not triggered.  A conclusion of natural causes was recorded with a short narrative description of events. 


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Article 2 and the provision of healthcare — Part 2

23 November 2020 by

Article 2 ECHR

This three-part extended analysis discusses the important recent authorities on article 2 ECHR in the context of the provision of healthcare. Part 1 examined the leading case of Lopes de Sousa. In this part, the way that this case has been addressed will be considered.

Criticism of the approach in Lopes de Sousa

It will be apparent that the requirements for a breach of the substantive obligation under article 2 set by the Grand Chamber overlap to some extent, and it is difficult to understand how all the factors identified in denial of treatment cases can be cumulatively required, as opposed to being alternative bases for a violation in some instances.  On any view, however, the overall effect is extremely restrictive and has been criticised as such, not least in a powerfully worded dissenting judgment from Judge Pinto de Albuquerque:

For a State to avoid international-law responsibility under the Convention, it is not sufficient for health-care activities to be circumscribed by a proper legislative, administrative and regulatory framework and for a supervisory mechanism to oversee the implementation of this framework, as the Court held in Powell […] By evading the question of the specific protection of the individual right of each patient and instead protecting health professionals in an untouchable legal bubble, Powell renders the Convention protection illusory for patients. Powell seeks a Convention that is for the few, the health professionals and their insurance companies, not for the many, the patients. This must be rejected outright. [64]

[…]

This case could have been a tipping point. The Grand Chamber did not want it to be that way. I regret that, by rejecting a purposive and principled reading of the Convention, the Court did not deliver full justice [94]

Judge Serghides, also dissenting, but in less trenchant terms, regretted the Grand Chamber had “missed a good opportunity to follow Elena Cojocaru and to abandon the Powell principle for good or distinguish the present case from that old decision.” [15]


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Article 2 and the provision of healthcare — Part 1

19 November 2020 by

The European Court of Human Rights at Strasbourg

This three-part extended analysis will discuss the important recent authorities on article 2 ECHR in the context of the provision of healthcare and identify important trends in the development of the law in this area.

Where article 2 of the Convention is invoked to allege inadequate provision of healthcare by the state, recent Strasbourg and domestic authority suggest an increasingly restrictive approach.


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False imprisonment not synonymous with breach of right to liberty

10 March 2020 by

R (on the application of Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2020] UKSC 4

In a pithy parting shot to the Home Secretary, Lady Hale has given the unanimous judgment of the Supreme Court on the question of whether a person subject to a home curfew under immigration powers had been falsely imprisoned at common law and whether that concept should now be aligned with the concept of deprivation of liberty in article 5 of the ECHR.  The Court decided the case against the defendant, as did every court below (the Blog covered the Court of Appeal’s decision here).  The defendant had been required to pay the claimant £4,000. 

False imprisonment at common law

The opening sentence sets the scene:

The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.

The claimant had been subject to an overnight curfew, enforced by way of monitoring equipment and an electronic tag, under paragraph 2(5) of Schedule 3 of the Immigration Act 1971.


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Removal of life support after brain stem death held lawful

14 February 2020 by

Manchester University NHS Foundation Trust v (1) Midrar Namiq (2) Karwan Mohammed Ali (3) Shokan Namiq  [2020] EWHC 180 (Fam); [2020] EWHC 181 (Fam).

In two related judgments, Lieven J considered an application made by a Hospital Trust to withdraw treatment from a child receiving mechanical ventilation to keep him alive and an application for anonymity on behalf of his treating clinicians.  The Trust succeeded in both. The decision has been upheld by the Court of Appeal.

The application to withdraw treatment was opposed by the parents.  As always in such cases the circumstances were tragic and emotions ran high, which provides some context to the anonymity application. 


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Chief Coroner publishes new guidance following Mary Hassell JR

18 May 2018 by

2000px-Royal_Coat_of_Arms_of_the_United_Kingdom_(HM_Government).svg.png

The Chief Coroner has issued guidance following the judgment of the Divisional Court in R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin) (“the AYBS Case”). The new Guidance No.28 can be found here.

The successful judicial review of the Coroner for Inner North London’s controversial ‘cab rank’ policy which led to this new guidance is discussed by this author on the Blog here.

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Coroner defeated over controversial ‘cab-rank’ burial policy

1 May 2018 by

Shaheen Rahman QC is a barrister at One Crown Office Row

R ((1) Adath Yisroel Buriel Society (2) Ita Cymerman) v HM Senior Coroner For Inner North London (Defendant) & Chief Coroner of England & Wales (Interested Party)  [2018] EWHC 969 (Admin)

Adath Yisroel.jpgThe Divisional Court has ruled that the Senior Coroner for Inner North London acted unlawfully in adopting a policy that resulted in Jewish and Muslim families facing delays in the burials of family members, contrary to their religious beliefs.  The policy was held to amount to an unlawful fetter upon her discretion, and also to be irrational, to breach Articles 9 and 14 of the ECHR and to amount to indirect discrimination contrary to the Equality Act 2010 (“EQA”).

The policy at the heart of this highly publicised battle between the coroner and faith groups has drawn criticism from across the political spectrum.  It is to the effect that

No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officer’s or coroners.

It has resulted in a blanket refusal of requests for expedition in circumstances where a religion stipulates that burial must take place within a short period of deathSuch requests have arisen in cases where the family is waiting for the coroner to decide whether a post mortem examination is required.

 
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High Court refuses to condemn US drone strikes

9 January 2013 by

military-drone-spy-008R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment

In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan.  The Claimant’s father was killed during such an attack in March 2011.

The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law.  The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]

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Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…

2 May 2012 by

“Yes, come to the library! Browse and borrow, and help make sure it’ll still be here tomorrow…” Thus concludes “Library poem”, penned by Children’s Laureate and Gruffalo creator Julia Donaldson, the latest high profile recruit to the campaign against planned library closures.

There have been a number of developments since we last blogged on this issue:

First, in R(Bailey And Others) V Brent London Borough Council & All Souls College (Interested Party)  & Ehrc (Intervener) [2011] Ewca Civ 1586, The appellants failed to overturn the dismissal of their application for judicial review of a local authority’s decision to close half its public libraries.  See previous post here. The Court of Appeal dismissed the appeal on every ground, noting that the local authority’s decision to reduce its expenditure on public services was primarily one for it to make as a democratically elected body.  Given the scale of the spending reductions required the decision was not unlawful.


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Successful challenge to library closures: lip service not enough for equality duties

24 November 2011 by

R (Green and others) v GLOUCESTERSHIRE COUNTY COUNCIL & SOMERSET COUNTY COUNCIL [2011] EWHC 2687 (Admin) – Read judgment

In the administrative court, the decisions of two local authorities to withdraw funding for library services were held to be unlawful. 

The court held that the withdrawal of a local library might indirectly discriminate against people with physical disabilities, women and the elderly.  Both councils had purported to carry out equality impact assessments but the mere fact that such an assessment had been conducted did not demonstrate that due regard had been given to the public sector equality duty.

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More cuts: Library closure challenge fails

20 October 2011 by

Updated | Bailey & Others v London Borough of Brent Council [2011] EWHC 2572 (Admin) – Read judgment

Every Wednesday my daughter looks forward to the arrival of the mobile library at her nursery.  Two by two the children go into the little world of books and emerge holding a new story they have chosen for themselves. 

Not for long.  Despite the well-documented advantages of exposing children to the joys of reading at an early age – before the attractions of TV, video games and looting shops take hold – library services across the land are being targeted for cuts.

The duty to provide library services for children was one of the key arguments advanced by campaigners in Brent challenging the council’s decision to close 6 of its 12 libraries.  Reliance was placed upon section 7 of the Public Libraries and Museums Act 1964.  This requires local authorities to provide a comprehensive and efficient library service.

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Council disregards new equality duties in terminating free legal services

21 April 2011 by

Rahman, R (on the application of Birmingham City Council) [2011] EWHC 944 (Admin) (31st March 2011) – read judgment

The Prime Minister recently called upon immigrant communities to integrate more fully in British Society, criticising in particular those who fail to learn English.

But three longstanding residents of Birmingham who communicate poorly in English and rely upon legal entitlement advice centres to provide services in their mother tongue, have successfully argued that the Defendant Council unlawfully failed to discharge its Public Sector Equality Duty in ceasing to fund the centres. Two further Claimants, with disabilities, also succeeded in their challenge to the Council’s decision to cease funding another centre that was providing free assistance in welfare benefit appeals.

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